Alabama lawmakers may be waving the white flag in the culture wars – advancing a bill that would eliminate marriage licenses entirely, in turn helping judges avoid the gay marriage debate in the conservative state.
“No one particularly likes changing our law, I’ll tell you that,” the bill’s sponsor, Republican state Sen. Greg Albritton, said in an interview. “However, under the circumstances, it’s the best thing we can do.”
Albritton denies any attempt at “denigrating marriage,” as some social conservative critics charge. The Republican said his bill is a practical solution for the state in response to the Supreme Court striking down gay marriage bans in the 2014 Obergefell v. Hodges decision.
“We would not have changed this had it not been for Obergefell,” Albritton said. “But without the change, the law remains in conflict with Obergefell. So we got to make some changes to the law to come into compliance.”
Alabama’s state law has long defined marriage as between a man and a woman and has given probate judges discretion in issuing marriage licenses.
But after the U.S. Supreme Court’s Obergefell ruling, then-Alabama Supreme Court Justice Roy Moore instructed probate judges to use their power to deny same-sex couples marriage certificates. The conflicting orders led to Moore’s suspension from the court.
Albritton’s legislation, which was approved by Alabama’s Senate on Jan. 16, would end the practice of probate judges issuing marriage licenses to anyone. The bill now heads to the House, where it is being considered in committee on Wednesday.
The Republican sponsor says he’s unaware of other states that have taken similar steps. Alabama’s not the only state grappling with the issue, though. In Kentucky, local county clerk Kim Davis famously refused to issue a marriage license for a gay couple in 2015.
"Some see this as a way to protect local probate judges from being forced to issue gay marriage licenses, which is both morally and politically problematic for a lot of them,” Todd Stacy, the publisher of the Alabama Daily News, said of the Alabama bill.
“But I take Sen. Albritton at face value when he argues that this is a church-state issue to him and many others,” Stacy said. “For many social conservatives, the question is, if the state cannot define marriage the way it wants, why should it be in the marriage business at all?”
The bill doesn’t stop the state from recognizing marriages, whether it be straight or gay couples. Marriages would still be recorded by the state when couples file an affidavit with a judge.
“It removes the discretion from the judges,” Albritton said. “The judges can no longer say yes or no.”
Meanwhile, the move has generated pushback from well-known social conservatives who say it amounts to giving up the fight for traditional marriage.
“I disagree with the proposed legislation to replace state marriage licenses with private contracts,” Moore, the former state chief justice who lost a high-profile race for the Senate last month, told Fox News in a written statement. “We need to take a stand for holy matrimony and defend our laws as defined by God and the Constitution of Alabama."
On the other hand, some liberals have accused Republicans of backing the measure to spite gay couples and avoid having to consent to their marriages. “I lose some people on the far left, and I lose some people on the far right,” Albritton acknowledged.
Stacy predicted the measure could pass.
"The fact that it passed the Senate on the first day with almost no opposition gives it a good chance of becoming law,” said Stacy, who previously worked as a top aide for Alabama’s governor, speaker of the House and a member of Congress. “It gives Sen. Albritton all session to bring House members on board.”